Drakes Bay Oyster Co. will challenge federal ruling

The owner of the Drakes Bay Oyster Co. said Wednesday he plans to file a petition requesting the case be reheard in front of the 9th U.S. Circuit Court of Appeals — a day after the same court ruled against the company.

Lunny said that within 45 days his lawyers will file a petition for what is known as an "en banc" rehearing. The court then must decide if it will take the case again. If it does, the entire 11-judge panel of the 9th circuit would hear it.

"With the support of thousands of environmentalists, community members and elected leaders around the nation, we will continue to fight for what's right and remain committed to succeeding in our fight to remain open and serve our community," Lunny said in a statement.

On Tuesday, a three-judge panel of the 9th circuit ruled it lacked jurisdiction to review Interior Secretary Ken Salazar's discretionary decision not to issue a new operational permit for Drakes Bay. In its ruling, the 9th circuit court ruled 2-1 against the oyster operation.

Lunny is seeking a temporary injunction from the court to allow him to continue to operate until his lawsuit challenging the closure can be heard. Until legal issues are cleared up, the Inverness oyster farm will remain open.

"Although we strongly disagree with the panel's decision, we remain steadfast in our opinion that we can prevail based on the merits of our case," Lunny said.

Drakes Bay supporters were buoyed by the dissenting opinion of Judge Paul J. Watford. In his opinion, the judge was critical of the majority's decision, asserting that it consisted of "hand waving," containing "nothing of any substance" and that "Drakes Bay is likely to prevail on the merits."

Amy Trainer, executive director of the Environmental Action Committee of West Marin, stood by the majority's opinion and an earlier lower court ruling that also supported Salazar's decision.

"The lower and higher court both agreed with the Obama administration that it was correct and fair to let the lease expire and protect an invaluable estuary for all Americans," Trainer said in a statement. "We are glad that the courts agree that Americans deserve the marine wilderness they long ago paid and planned for."

The closure order came on Nov. 29 last year, when Salazar announced he would allow a 40-year lease — originally negotiated with the Johnson Oyster Co. in 1972 and taken on by Drakes Bay — to expire. In 1972, the federal government bought the land from Johnson for $79,200 and provided the lease. Lunny took over the lease in 2004.

Salazar wrote in his decision that Lunny was explicitly informed "no new permit will be issued" after the 2012 expiration date.

In February, U.S. District Judge Yvonne Gonzalez Rogers rejected a preliminary injunction to halt the federally ordered closure of the oyster operation in the Point Reyes National Seashore.

The 9th circuit court agreed to hear the case and review Rogers' decision. Lunny needs a temporary injunction to allow him to continue to operate until his lawsuit challenging the closure can be heard.